United States v. Mikel Clotaire

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-15287
________________________
D.C. Docket No. 9:16-cr-80135-RLR-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIKEL CLOTAIRE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 30, 2020)
Before ROSENBAUM, GRANT, and HULL, Circuit Judges.
GRANT, Circuit Judge:
Brothers Mikel and Yvenel Clotaire applied for Florida unemployment
benefits. The problem was that they did so many times, and using many
identities—none of which were their own. In a creative twist, the brothers
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leveraged Yvenel’s job as a postman to intercept preloaded debit cards that they
had requested while posing as residents who lived on Yvenel’s route. Though the
mailboxes did not have surveillance footage (that we know of), the banks where
the brothers used the stolen debit cards did. When the law eventually caught up
with the Clotaire brothers, the federal government charged each with conspiracy to
commit access device fraud, access device fraud, and aggravated identity theft. 18
U.S.C. §§ 1029(b)(2), 1029(a)(2), 1028A(a)(1). Though tried separately, both
were convicted. Mikel Clotaire now appeals on multiple evidentiary grounds, all
of which challenge the methods that the government used to prove his identity to
the jury. We affirm his convictions.
I.
In 2014, the Jupiter Police Department got word that one of its officers
applied for Florida unemployment benefits. Suspecting that the officer was a
victim of identity theft—after all, he was very much employed—the police
contacted the state unemployment office, which in turn reached out to the U.S.
Department of Labor when it learned that the application was not legitimate.
Special Agent Mathew Broadhurst, an investigator with the Labor Department,
opened a criminal investigation.
The investigation uncovered an electronic application for benefits with the
officer’s name, date of birth, driver’s license number, and social security number.
That was an obvious problem since the officer had not applied. More digging
revealed seven more fraudulent applications—each exploiting a different person’s
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identity, but bearing enough similarities to indicate that they were part of a
common scheme.
Based on these fraudulent applications, the state unemployment office had
mailed debit cards to various addresses in the 33418 zip code. As it turns out,
Yvenel, a postman with the U.S. Postal Service, covered this area on his route and
snatched the fraudulently issued debit cards before they were ever delivered.
Clever.
But not quite clever enough. Once Broadhurst identified the debit cards
issued to the eight victims, he obtained the ATM withdrawal history of each card
so he could determine when and where they had been used. Surveillance from the
bank branches showed the perpetrator, and at Broadhurst’s request, PNC Bank
delivered photographs taken from its ATM cameras. A visible license plate
number led to a Hertz rental car agreement in Yvenel’s name. Broadhurst pulled
Yvenel’s driver’s license photograph and compared it to the man depicted in the
ATM photographs. It looked like a match. Based on Broadhurst’s testimony, a
grand jury indicted Yvenel.
There was just one problem: as investigators learned more about the scheme,
it became clear that the man in the photographs was not Yvenel, but his brother,
Mikel Clotaire. The original indictment against Yvenel was dismissed, and in
February 2017 a grand jury indicted both brothers on the counts listed above. The
two were tried separately, and each was convicted. This is Mikel’s appeal.1
1
Yvenel did not appeal his conviction.
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II.
This Court ordinarily reviews evidentiary rulings for an abuse of discretion.
United States v. Caraballo, 595 F.3d 1214, 1226 (11th Cir. 2010). We review de
novo whether a hearsay statement is testimonial and implicates the Sixth
Amendment’s Confrontation Clause. Id.
When a party failed to object to an evidentiary ruling at trial, we review for
plain error. United States v. Hesser, 800 F.3d 1310, 1324 (11th Cir. 2015). “To
find plain error, there must be: (1) error, (2) that is plain, and (3) that has affected
the defendant’s substantial rights.” Id. (quoting United States v. Khan, 794 F.3d
1288, 1300 (11th Cir. 2015)). We may exercise our discretion to correct errors that
meet these conditions and “seriously affect[] the fairness, integrity, or public
reputation of judicial proceedings.” Id. (quoting United States v. Moriarty, 429
F.3d 1012, 1019 (11th Cir. 2005)).
III.
Mikel’s trial defense was based on a theory of mistaken identity. The
government’s case depended on the surveillance images taken from PNC Bank’s
ATMs, and Mikel’s counsel doggedly challenged the factual basis of the
government’s identification. This approach meant casting doubt not only on the
reliability of the images, but on government witnesses who identified Mikel—or
ruled out Yvenel—as the man captured in the images. Now on appeal, Mikel
targets the legal basis of the identification on a number of fronts. He challenges
(1) the admission of the ATM images, (2) various trial court decisions that limited
his ability to challenge the accuracy of the government’s identification, (3) the
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admission of Special Agent Broadhurst’s putative expert testimony regarding
camera distortion, (4) the admission of lay identification testimony by Yvenel’s
Postal Service supervisor, and (5) the admission of his post-arrest booking
photograph. Additionally, Mikel argues that even if none of these errors are
reversible by themselves, their cumulative effect denied him a fair trial.
A.
Broadly speaking, Mikel challenges the admissibility of the images derived
from surveillance video taken by PNC Bank ATMs on three fronts. First, Mikel
says that the photographs were not properly authenticated as business records.
Second, he argues that the images were testimonial hearsay. Third, he argues that
the Rule 902(11) certifications themselves violated the Confrontation Clause. We
reject each of these contentions.
1.
Before trial, the government declared its intent to admit the ATM photos as
records of regularly conducted business activity pursuant to Federal Rules of
Evidence 902(11) and 803(6). Under Rule 902(11), an item of evidence is “self-
authenticating” if it is an “original or a copy of a domestic record that meets the
requirements of Rule 803(6)(A)–(C).”2 Rule 803, in turn, provides that a business
record is admissible if three conditions are met: (A) “the record was made at or
near the time by—or from information transmitted by—someone with knowledge,”
2
The government argues that the surveillance images were also authenticated under Rule 901.
Because we hold that the images were properly authenticated as business records, it is
unnecessary to analyze this alternative basis for authenticating the records.
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(B) “the record was kept in the course of a regularly conducted activity of a
business,” and (C) “making the record was a regular practice of that activity.”3
Fed. R. Evid. 803(6).
No one contests that PNC Bank’s full surveillance videos are business
records. But as for the photo stills pulled from the videos, Mikel argues that they
were created for the purposes of litigation and thus are not business records within
the meaning of the Federal Rules. Our question, then, is whether the images used
at trial were new “records” apart from the videos from which they were derived.
We start with the basics. One way to look at these exhibits is as a format
change—from video to photograph. Under that view they are admissible; an
otherwise-admissible business record does not become a new, inadmissible record
merely because its format is adapted for trial display. For instance, we—like
several of our sister circuits—have no doubt that electronic business records may
be printed for trial. Leading the way on this issue, the Tenth Circuit rejected the
argument that information in a government database “was prepared for purposes of
trial” and thus was not admissible as a business record merely because it was
printed out. United States v. Hernandez, 913 F.2d 1506, 1512 (10th Cir. 1990).
That argument “misconstrues the essence” of the business records rule: “so long as
the original computer data compilation was prepared pursuant to a business duty in
accordance with regular business practice, the fact that the hard copy offered as
3
Rule 803(6) is commonly invoked as an exception to Rule 802’s prohibition on hearsay
evidence. This application of the Rule is not at issue because the ATM photos are not hearsay.
See section III.A.2, infra.
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evidence was printed for purposes of litigation does not affect its admissibility.”
Id. at 1512–13; see also United States v. Keck, 643 F.3d 789, 797 (10th Cir. 2011)
(“In the context of electronically-stored data, the business record is the datum
itself, not the format in which it is printed out for trial or other purposes.”).
We echoed this holding in United States v. Ross, explaining that foreign
immigration records were not inadmissible merely because “they consisted of
computer print-outs prepared for purposes of litigation.” 33 F.3d 1507, 1517 n.17
(11th Cir. 1994). The Second and Seventh Circuits are also in accord. See
Potamkin Cadillac Corp. v. B.R.I. Coverage Corp., 38 F.3d 627, 632 (2d Cir.
1994) (quoting and adopting the rule in Hernandez); United States. v. Fujii, 301
F.3d 535, 539 (7th Cir. 2002) (“Computer data compiled and presented in
computer printouts prepared specifically for trial is admissible under Rule 803(6),
even though the printouts themselves are not kept in the ordinary course of
business.”). So as a general rule, the format of an extracted dataset has nothing to
do with whether it qualifies as a business record. What matters is whether the
original record met the requirements of Rule 803(6).
The general principle described in these cases can be supported in two
important ways. First, while the format of the records was changed, their
communicative content was not. And second, little human discretion or judgment
was involved; only a technical format change was needed. Both points hold up
here. The message of the tape—“this is the image of the person using the ATM at
this time”—did not change. Nor did providing a still frame photo require anything
more than technical expertise.
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Another way to look at these photos is as a subset of available data;
extracting static images from a video is like printing a selection of pages from a
longer record, not like creating a new document that summarizes an original
record. After all, a video is nothing more than a series of static images appearing
at a given frame rate. See, e.g., Soharab Hossain Shaikh et al., Moving Object
Detection Using Background Subtraction 1 (2014) (stating that “a video consists of
a sequence of static images or frames”). Selecting a still frame from a video does
not create communicative content any more than introducing a single page from a
record book.
Nor does the government’s selection of which record—or which portion of a
longer record—to introduce at trial transform a qualifying business record into a
record prepared for the purposes of trial. For instance, in United States v. Sanchez,
the government entered into evidence certain call records extracted from the
database of a cellular telephone provider. See 586 F.3d 918, 927–29 (11th Cir.
2009). We treated the business record as the database itself. See id. at 928–
29. There, as here, the government only requested the portions of the business
record relevant to its case. In Sanchez, that meant call records of the four
defendants. Id. at 926. Here, it meant still frame photos that established Mikel’s
location at a certain time and place.
Again, no one doubts that the surveillance videos themselves were self-
authenticating business records under Rule 803(6). The still frame photos pulled
from the tape are no different than wheeling a television into the courtroom with
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the video paused at just the right frame, either in what they communicated or in
how they did it. The photos were self-authenticated business records.
2.
Even so, Mikel argues that the person who pulled still frames from the video
surveillance reel is a witness against him, and that he therefore had “the right to
confront the methods used to produce the images and the opportunity to cross-
examine someone with knowledge of how the exhibits” were created. We
disagree. The Confrontation Clause provides that in “all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him.”
U.S. Const. amend. VI. The problem for Mikel is that the Confrontation Clause
“only applies to ‘testimonial statements,’ specifically testimonial hearsay.” United
States v. Curbelo, 726 F.3d 1260, 1272 (11th Cir. 2013) (quoting Crawford v.
Washington, 541 U.S. 36, 53, 59 (2004)). And that’s not what is at issue here.
When the Supreme Court decided Crawford, it gave form to the category of
testimonial statements:
Various formulations of this core class of testimonial statements exist:
ex parte in-court testimony or its functional equivalent—that is,
material such as affidavits, custodial examinations, prior testimony that
the defendant was unable to cross-examine, or similar pretrial
statements that declarants would reasonably expect to be used
prosecutorially; extrajudicial statements . . . contained in formalized
testimonial materials, such as affidavits, depositions, prior testimony,
or confessions; statements that were made under circumstances which
would lead an objective witness reasonably to believe that the statement
would be available for use at a later trial.
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310 (2009) (quoting Crawford,
541 U.S. at 51–52) (alteration in original).
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Some cases are close on whether a document fits within that category; this
one is not. Still frame pictures are not statements at all, let alone testimonial ones. 4
We understand intuitively that pictures are not witnesses; pictures “can convey
incriminating information . . . . But one can’t cross-examine a picture.” United
States v. Wallace, 753 F.3d 671, 675 (7th Cir. 2014); see also Paul F. Rothstein,
Federal Rules of Evidence 737 (3d ed. 2019) (collecting similar cases).
Surveillance cameras are not witnesses, and surveillance photos are not statements.
This commonsense conclusion is supported in the Federal Rules, which define a
statement as “a person’s oral assertion, written assertion, or nonverbal conduct, if
the person intended it as an assertion.” Fed. R. Evid. 801(a). And while that Rule
does “not formally demarcate the scope of ‘statements’ for Confrontation Clause
purposes,” we have already recognized its definition as “uncontroversial,
especially since the Sixth Amendment provides the right to confront (human)
witnesses.” United States v. Lamons, 532 F.3d 1251, 1263 (11th Cir. 2008)
(internal quotation marks omitted). So the photos themselves pose no problem
under the Confrontation Clause.
But what about the person who pulled them from the surveillance tapes? We
are not persuaded by Mikel’s argument that the photos were somehow “enhanced”
4
This conclusion does not—and cannot—rest on our determination that the ATM photographs
are business records. In Melendez-Diaz, the Court held that that “[b]usiness and public records
are generally admissible absent confrontation not because they qualify under an exception to the
hearsay rules, but because—having been created for the administration of an entity’s affairs and
not for the purpose of establishing or proving some fact at trial—they are not testimonial.” 557
U.S. at 324. Thus, Mikel’s Confrontation Clause claim turns on whether the records are
testimonial and not whether they otherwise meet the Rule 803(6) requirements.
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in a manner that turned them into the testimony of the bank employee who pulled
them. He points to an email sent by a PNC Bank employee named Natalie Moran
to Broadhurst. The email included several ATM surveillance images, along with
the following note describing Moran’s effort to obtain the clearest photo:
I know from the previous request that you preferred to have the time
stamp indicating the card information on the photo, but some did not
give me the time stamp. I scanned through the entire transaction hoping
to get the stamp and this is the best I could obtain. I also tried to get
the best quality photo, but some are a little dark and when lightening
the image became distorted. Please let me know if there is anything
else I can assist with.
Even if we were to assume that Moran’s email is evidence that the photos
entered at trial underwent some post-capture processing for clarity—though the
email arguably suggests the opposite—that would not make the photos testimonial
statements. An assertion happens when a person speaks, writes, or acts “with the
intent of expressing a fact or opinion.” Black’s Law Dictionary (11th ed. 2019).
Processing an image is not an oral or written assertion, so it could only be a
statement if it were nonverbal conduct intended as an assertion. See Fed. R. Evid.
801(a). In her role as photo processor, Moran was doing nothing but getting the
clearest image; she made no assertion about what the image showed or who it
might be. We cannot see how the photo itself or the person who pulled it was
intending to assert anything.
That conclusion dooms Mikel’s argument. Because neither the surveillance
photos nor their (purported) enhancement can be considered statements at all,
much less testimonial ones, Mikel’s Confrontation Clause argument fails.
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3.
Mikel’s last business record argument is that the certifications for the photos
were testimonial. But that contention is also foreclosed by Melendez-Diaz. There,
the Supreme Court distinguished between authentication and creation of a record
and stated that a clerk could not “create a record for the sole purpose of providing
evidence against a defendant,” but could, with an affidavit, authenticate an
otherwise admissible record. 557 U.S. at 322–23. That’s what happened here, so
we join other circuits in concluding that business records certifications are not
testimonial. See, e.g., United States v. Yeley-Davis, 632 F.3d 673, 680 (10th Cir.
2011); United States v. Ellis, 460 F.3d 920, 927 (7th Cir. 2006).
B.
Mikel next asserts that, through various evidentiary rulings, the district court
improperly limited his ability to present a full and fair defense. For ease of
organization, we divide these objections into two groups: (1) evidence related to
the government’s initial misidentification of Yvenel as the man in the ATM photos
and (2) emails involving Special Agent Broadhurst. None of the trial court
decisions challenged by Mikel amount to an abuse of discretion.
1.
At trial, Mikel sought to emphasize the government’s initial wrongful
identification. He claims that he was wrongly prevented from inquiring on cross-
examination about (1) the professional background of Special Agent Pesaro, the
supervisor who agreed with Broadhurst’s initial misidentification; (2) the grand
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jury’s indictment of Yvenel; and (3) the arrest warrant of Yvenel. He also
contends that the district court erred in failing to admit a copy of the arrest warrant.
Trial judges “retain wide latitude to impose reasonable limits on cross-
examination based on concerns about, among other things, confusion of the issues
or interrogation that is repetitive or only marginally relevant.” United States v.
Baptista-Rodriguez, 17 F.3d 1354, 1370–71 (11th Cir. 1994). Here, the trial judge
did not go beyond those bounds. Mikel was able to establish that Broadhurst’s
supervisor reviewed his investigative report, that a grand jury had previously
indicted Yvenel, and that an arrest warrant had been issued for Yvenel. The
professional background of Broadhurst’s supervisor, the number of people on the
grand jury, and Yvenel’s original arrest warrant were only marginally relevant and
could have confused the real issues in the trial. “[W]here the proffered evidence
does not bear a logical relationship to an element of the offense or an affirmative
defense, whether direct or indirect, a defendant has no right to introduce that
evidence and a district court may properly exclude it.” United States v. Hurn, 368
F.3d 1359, 1365 (11th Cir. 2004). The limits set by the district court were well
within the court’s discretion.
Nor did the district court cause any prejudice by announcing these and other
evidentiary rulings before the jury. Here, all the district court did was rule on
evidentiary objections—and if that were a problem, it would be one in every other
trial too. We see no error.
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2.
Mikel also claims that the district court wrongly excluded two emails sent to
Broadhurst. As discussed above, Moran sent Broadhurst several surveillance
photos, noting that “some are a little dark and when lightening the image became
distorted.” And in another email, the prosecutor sent Broadhurst a phone number
possibly associated with Mikel and asked if the number “cross references with any
of our information.”
The district court properly excluded both emails as hearsay. The Moran
email was offered to demonstrate that the bank’s surveillance images may have
been distorted. The prosecutor’s email was offered to show that the government
was investigating an additional phone number associated with Mikel. In other
words, both Moran’s email and the prosecutor’s email were offered to prove the
truth of the matters asserted by the declarants.
Mikel certainly had the right to challenge the reliability of the photos. But
under the Federal Rules of Evidence, there are right ways and wrong ways to
explore this issue. We note that while questioning Broadhurst about the content of
the email with Moran, Mikel countered the government’s hearsay objection by
stating the question was for impeachment purposes. The judge properly allowed
the question. But when Mikel sought to admit Moran’s email in its entirety, he
gave no indication that the email was offered for anything other than proof of the
matter asserted in the email. And although Mikel’s brief gestures at arguments that
the emails were offered for impeachment purposes, these arguments were never
fully developed and—more importantly—never raised at trial.
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Even assuming that one or both of the emails could have been offered at trial
for impeachment purposes, Mikel did not make that argument at trial. Nor will we
consider it here. No legal rule required the trial court to suggest that Mikel try
impeaching Broadhurst with either email, so its failure to do so was not error. See
United States v. Madden, 733 F.3d 1314, 1322 (11th Cir. 2013) (defining error as
“[d]eviation from a legal rule”) (alteration in original) (quoting United States v.
Olano, 507 U.S. 725, 732–33 (1993)). After all, offering the emails as substantive
proof is categorically different than offering them for proof that Broadhurst was an
unreliable witness. On appeal, it is thus irrelevant what would have happened had
Mikel offered the emails for an entirely different purpose. We do not sit in review
of hypotheticals.
In any event, Mikel could have subpoenaed Moran as a defense witness.
The defense’s ability to subpoena a witness is not a substitute for confrontation,
see Melendez-Diaz, 557 U.S. at 324, but sworn testimony from the declarant is a
substitute for the admission of hearsay. As we explained above, Mikel did not
have a Sixth Amendment right to confront Moran. What he did have is a right to
procure testimony from Moran—a right he chose not to exercise.
C.
Mikel argues that two aspects of Broadhurst’s testimony were inadmissible
expert testimony: his statements about the difference between what one sees with
the naked eye and what one sees in a two-dimensional photograph, as well as his
statements about the difference between needle distortion and barrel distortion
caused by a camera lens.
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A lay witness can give testimony “rationally based on the witness’s
perception.” Fed. R. Evid. 701(a). “Rule 701 does not prohibit lay witnesses from
testifying based on particularized knowledge gained from their own personal
experiences.” United States v. Hill, 643 F.3d 807, 841 (11th Cir. 2011). It does
not take specialized expertise to understand that three-dimensional objects may
look different in person than in a two-dimensional photograph. Therefore, the
district court did not err in allowing Broadhurst to attest to this basic point.
As for Broadhurst’s testimony on the two types of camera distortion, the
government concedes that this was expert witness testimony subject to Rule 702 of
the Federal Rules of Evidence. Rule 702 allows a witness to testify as an expert if
he is qualified “by knowledge, skill, experience, training, or education.” Fed. R.
Evid. 702. To qualify an expert under this rule, the district court must ordinarily
act as a “gatekeeper” and “conduct an exacting analysis” of the basis for the
expert’s testimony. McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256–
57 (11th Cir. 2002) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579
(1993)).
But Mikel never objected to Broadhurst’s qualifications or claimed that his
testimony about the camera distortions was unreliable. Accordingly, we review the
district court’s implicit rulings about Broadhurst’s qualifications and testimony for
plain error. See United States v. Frazier, 387 F.3d 1244, 1268 n.21 (11th Cir.
2004) (en banc). The record establishes that, prior to entering government service,
Broadhurst had specialized training and experience working with closed circuit
television cameras. During Broadhurst’s testimony, he connected his opinions
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about the camera distortions to knowledge from this experience working with
security camera footage. Based on this record, we cannot say that the district court
erred, let alone plainly, by allowing Broadhurst to testify about the distortions.
Mikel objects that the government never filed notice of Broadhurst’s expert
testimony, but that makes no difference because the government only has an
obligation to provide the defense advance notice of expert witnesses (along with a
summary of their testimony) if the defendant makes a request. See Fed. R. Crim.
P. 16(a)(1)(G). Mikel never did.
D.
Mikel next argues that the government did not establish the proper
foundation for the lay identification testimony of Yvenel’s U.S. Postal Service
supervisor, Lori Giordano. Among other things, Giordano testified that the person
in the ATM surveillance photos was not Yvenel.
We have expressly approved lay identification testimony where “there is
some basis for concluding that the witness is more likely to correctly identify the
defendant from the photograph than is the jury.” United States v. Pierce, 136 F.3d
770, 774 (11th Cir. 1998) (quoting United States v. Farnsworth, 729 F.2d 1158,
1160 (8th Cir. 1984)). That liberal standard is easily met here. The trial transcript
shows that Giordano had “personal interaction” with Yvenel due to her position as
his supervisor. Additionally, she interacted with him across a period of time in
which his hairstyle changed. We thus find a reasonable basis for concluding that
Giordano was more likely to correctly rule out the identification of Yvenel—who
was not in the courtroom—than members of the jury. Mikel’s suggestion that
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Giordano’s testimony was less reliable because she met with prosecutors before
testifying does not firm up his argument. Any of a number of reasons explain why,
beginning with the fact that it is not at all uncommon for witnesses to meet with
lawyers before testifying. And in any event, Mikel was able to question Giordano
on cross-examination about her contact with the government.
E.
The district court also permitted the government to introduce (over
objection) Mikel’s booking photograph—otherwise known as a mug shot—into
evidence so that the jury could compare the ATM surveillance photos with a more
contemporaneous photo of Mikel. Mikel argues that this was an abuse of
discretion under Rule 403, which provides that the “court may exclude relevant
evidence if its probative value is substantially outweighed by a danger of . . . unfair
prejudice.” Fed. R. Evid. 403. But Mikel ignores this Circuit’s mug shot
precedent.
Before turning to that precedent, we pause to appreciate the longstanding
judicial skepticism about the use of mug shots in criminal trials. That skepticism is
appropriate. Rule 404 prohibits the government from introducing evidence of a
prior crime or wrongful act to prove the defendant’s bad character and show that
he acted in conformance with that character. See Fed. R. Evid. 404(b)(1). Yet
through “police notations or the appearance or pose of the accused,” a mug shot
may “indicate to the jury that the accused has a history of convictions or arrests”—
even where that kind of evidence is otherwise excluded. United States v. Reed,
376 F.2d 226, 228 n.2 (7th Cir. 1967). It is completely unacceptable for the
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government to introduce a mug shot in order to draw attention to the defendant’s
prior troubles with the law. That evidence might tempt the jury to prejudge the
defendant, denying him “a fair opportunity to defend against a particular charge.”
Michelson v. United States, 335 U.S. 469, 476 (1948) (emphasis added).
Still, mug shots are not categorically barred; the danger of unfair prejudice
will not always substantially outweigh the probative value of the photos in
establishing the defendant’s identity. In United States v. Hines, we held that
introducing a defendant’s mug shot would be error unless the government satisfied
three prerequisites. 955 F.2d 1449, 1455–56 (11th Cir. 1992). First, the
“Government must have a demonstrable need to introduce the photographs.” Id. at
1455. Second, the “photographs themselves, if shown to the jury, must not imply
that the defendant has a prior criminal record.” Id. Third, the “manner of
introduction at trial must be such that it does not draw particular attention to the
source or implications of the photographs.” Id. at 1455–56. We consider these in
turn.
The opening Hines requirement is demonstrable need. Id. at 1455. Here, the
meaning of “need” is crucial. If need is demonstrated by the importance of the
defendant’s identity, then the standard is likely satisfied. If, on the other hand,
need implies a total lack of alternatives, then the standard is not met. Hines does
not describe the standard with precision. And surprisingly enough, in the 28 years
since Hines, our Court has not had occasion to apply its three-part test to another
case. We thus look to Hines’s predecessor cases for the guidance we need.
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The Hines requirements originated in the Second Circuit case United States
v. Harrington, 490 F.2d 487 (2d Cir. 1973). There, a crucial government witness
failed to make an in-court identification of the defendant. In an attempt to
rehabilitate the witness, the government had the witness replicate his previous out-
of-court identification from a mug shot. Id. at 489. Although the government had
produced testimony from two other witnesses that connected the defendant with
stolen property, the court found that “inasmuch as the expected identification from
[the witness] was an integral element in the scheme of the Government’s proof, we
conclude that this first prerequisite has been satisfied.” Id. at 495.
Harrington was not directly cited by Hines, but it formed the basis for two
cases that were. The earlier case was United States v. Fosher, a First Circuit
decision finding that demonstrable need was met where the “matter of
identification was crucial to the government’s case.” 568 F.2d 207, 215 (1st Cir.
1978). Likewise, in United States v. Torres-Flores, the Fifth Circuit found
demonstrable need when identification was “the crux of the Government’s case.”
827 F.2d 1031, 1039 (5th Cir. 1987). Neither Fosher nor Torres-Flores conducted
any comparative assessment of alternative pieces of evidence the government
might have relied on instead of the mug shots. And both cases contrast with Hines
itself, where the defendants rested their case not on a defense of mistaken identity,
but one of consent. See Hines, 955 F.2d at 1456. Thus, in Hines we said that the
government did not show demonstrable need because “the identity of the
defendants was never at issue” once the trial started. Id.
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The lesson we take from all four cases—Harrington through Hines—is that
the government meets its burden under the first requirement when identification of
the defendant is central to the government’s case. Here, that standard is easily met.
The government’s case hinged on whether Mikel was the man pictured in the ATM
surveillance images. At trial, the government contended that introducing the mug
shot was necessary so that the jury would have a depiction of Mikel that was
roughly contemporaneous with the ATM photos. Specifically, the mug shot
showed Mikel with dreadlocks, which he lacked at trial. Mikel countered that his
June 2012 passport photograph would have been just as probative as his October
2016 mug shot because it was slightly closer in time to the dates of the ATM
photographs (between March and May 2014). But as a court of review, it is not
our role to determine whether Mikel’s passport photograph or mug shot bears a
better resemblance to the ATM photos. It is enough, at least for the first prong of
Hines, that Mikel’s identity was crucially important in the case, and that the trial
court did not abuse its discretion in concluding that the mug shot would assist the
jury in determining whether Mikel was, in fact, the man in the surveillance images.
Hines’s second requirement—that the photos cannot imply that the
defendant has a prior criminal record—goes to the heart of the Rule 404 concern.
See 955 F.2d at 1455. Here, the prosecutor and the judge informed the jury that
“the photograph was taken on October 11th, 2016.” Since this was the date of
Mikel’s arrest on the charges being prosecuted, the stipulation effectively removed
the implication of a prior arrest. We are not the first court to reach this conclusion.
In Harrington, for instance, there was “no chance whatsoever that the jury could
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infer a prior criminal record” because a police officer testified that the mug shot
was taken at the time of the defendant’s arrest for that case. 490 F.2d at 494;
accord United States v. Mohammed, 27 F.3d 815, 822 (2d Cir. 1994) (no error
where “the photographs were taken at the time of Mohammed’s arrest for the
crimes charged in this case”) (emphasis in original); Murray v. Superintendent,
Kentucky State Penitentiary, 651 F.2d 451, 454 (6th Cir. 1981) (since the jury
already knew the defendant’s criminal record, his “mug shots revealed nothing that
the jury did not already know”).
But a stipulation is not a free pass—showing the jury an obvious mug shot
could still weaken the defendant’s presumption of innocence by stigmatizing him
with “an unmistakable badge of criminality.” Eberhardt v. Bordenkircher, 605
F.2d 275, 280 (6th Cir. 1979). By way of example, the characteristic “double-
shot” display—adjacent front and profile photographs—“is so familiar, from
‘wanted’ posters in the post office, motion pictures and television” that the
inference of criminality is “natural, perhaps automatic.” Barnes v. United States,
365 F.2d 509, 510–11 (D.C. Cir. 1966); cf. Estelle v. Williams, 425 U.S. 501, 504–
05 (1976) (the “distinctive, identifiable attire” of prison inmates “may affect a
juror’s judgment”). The harm can be even more obvious when, as in Hines itself,
the defendant’s mug shot is shown to the jury as one of several photos in a police
department’s photo array—a so-called “rogues’ gallery” of suspected criminals.
Hines, 955 F.2d at 1456; see also Fosher, 568 F.2d at 213 (“[M]ug shots from a
police department ‘rogues’ gallery’ are generally indicative of past criminal
conduct and will likely create in the minds of the jurors an inference of such
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behavior.”). The point is that the government cannot do its best to make the
defendant look like a hardened criminal and then wash away the stain of prejudice
by stipulating that the mug shot was not from a previous run-in with the law.
But that is not what happened here. The government introduced only the
direct shot of Mikel, removing the profile picture so emblematic of a mug shot.
Additionally, jailhouse administrative markings were removed from the
photograph. These were important steps. We note, however, that the photograph
shows Mikel wearing standard-issue jailhouse garb, which may or may not have
been apparent to jurors. Additionally, the photograph’s background shows visible
height gauges. See Torres-Flores, 827 F.2d at 1039 (criticizing visible measuring
tape in a mug shot). The picture could have been cropped from the shoulders up,
and the height gauges could have been edited out. After all, if the jury is unaware
that the defendant was in police custody when the mug shot was taken, there will
be even less opportunity for an inference—even an inaccurate one—that the
defendant has a prior criminal record. Nonetheless, because the jury had no reason
to suspect that the photo was taken from an earlier brush with the law, Mikel’s
mug shot satisfies Hines’s second prong.
The third Hines requirement is that the manner of introducing the
photograph into evidence not draw attention to its source or implications. See 955
F.2d at 1455–56. Essentially, counsel should not put on a show about the fact that
they are introducing a mug shot, or even have a dialogue with the court about it in
front of the jury. In Fosher, the First Circuit said that the “preferable approach”
for admitting a mug shot “would be to require a proffer of the evidence and rule on
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its admissibility out of the hearing of the jury.” 568 F.2d at 216. We agree, and
that is precisely what happened here. Unlike in Harrington, the debate over the
propriety of the mug shot took place away from the jury. See 490 F.2d at 495; see
also Fosher, 568 F.2d at 216 (the “unique character of the photograph” was
accentuated by a lengthy open court debate over the rules of evidence). And unlike
in Torres-Flores, where the government brought out testimony that the Border
Patrol kept the photos in their locker room, Mikel’s prosecutor did not draw
attention to how or under what circumstances the photographs were taken. See 827
F.2d at 1039. Because of the care taken by the district court, the photo’s
introduction satisfies the third prong of Hines.
In sum, the circumstances of this case and the condition of this photo meet
the Hines requirements. Mikel’s trial defense made his identity the central
question in the case, and the photo had significant probative value. The
government took steps to reduce the prejudicial nature of the photo, which was far
from the “rogues’ gallery” photos that earlier cases rightfully rejected. Even
assuming that more could have been done to sanitize the photo, the stipulation
about the photo’s date sufficed to remove any implication that Mikel had a prior
criminal record. Finally, the government did not accentuate the prejudicial
implications of the mug shot by debating its admissibility in front of the jury or by
eliciting testimony that gratuitously linked the photo to criminality. Taking all of
these factors into account, we find that it was not error to admit Mikel’s booking
photo.
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F.
Mikel also raises the cumulative error doctrine. “The cumulative error
doctrine provides that an aggregation of non-reversible errors can yield a denial of
the constitutional right to a fair trial, which calls for reversal.” United States v.
Cooper, 926 F.3d 718, 739 (11th Cir. 2019) (internal alterations and quotation
marks omitted). Having found no error, we naturally find no cumulative error.
Mikel’s convictions are affirmed.
AFFIRMED.
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